Judiciary can't defend democracy on its own

The deputy chief justice, Dikgang Moseneke, displayed the intellectual integrity and courage for which he has been long known when he addressed a conference at Unisa earlier this month.

He reflected on the journey completed to date along the path to the society promised by our Constitution. As he observed, the Constitution was forged in the cauldron of apartheid, a system committed to racism, sexism and human indecency.
The Constitution mandated us to construct a society based on reconciliation and nation-building, leading to social cohesion and human decency for all.

Moseneke noted that there were many items that could be placed on the credit side of the national balance sheet, including negotiating a treacherous transition, the holding of regular free and fair elections, the construction of a workable democracy, a world-class revenue service and an efficient and responsible treasury. In addition, the court system protects and promotes the rule of law and exhibits robust independence, he said.

Yet the challenges that remain are many and complex. In particular, Moseneke singled out inequality, the struggle to ensure a culture of nonracism, the tardy pace of land restitution and, arguably most ominously, the manner in which executive power is concentrated and thus is less accountable than was the constitutional intent.

In this regard, Moseneke posed the question of whether the power to make key appointments that are critical to the maintenance of the democratic project should be concentrated in one office – the presidency. He noted that the courts had been required on several occasions to adjudicate on the rationality of appointments made by the president, raising the question of whether a collective decision would not have produced a more rational result.

Could it be that, when the Constitution was drafted, the model of executive power chosen was predicated on the idea that the president was the saintly Nelson Mandela? Should these key appointment powers not have been fashioned on a totally different basis, namely that the office of the president is likely to comport itself in a manner consistent with most presidents, rather than being based on a utopian vision?

Some have unfairly criticised the deputy chief justice for raising these questions. But his point is truly of legitimate concern to judges around South Africa, and most particularly to the leaders of the judiciary. As Moseneke said, the courts will continue to be staffed by judges who will do their job of showing fidelity to the Constitution. Yet the courts cannot do the heavy democratic lifting indefinitely. As has occurred on a number of occasions, when a court’s decision disposes of a controversial political dispute, the ruling party has attacked the judiciary with great vigour. Ultimately, the future of a constitutional democracy that promises social cohesion, nonracism, nonsexism, social justice for all and political accountability is dependent on what Moseneke termed “the totally democratic and socially inclusive practices of our people”.

Thus, challenges such as ensuring quality education for all, responsive land redistribution policies and the redress of shocking levels of inequality cannot be solved by the courts. At the same time, as is clear from Moseneke’s reflections, at present the courts are in the front line of the fight to preserve our constitutional ambitions. And without democratic reinforcements from civil society, that line will inevitably be breached.

Needless to say, it would be helpful to the greater democratic enterprise if South Africa could wake one day to the news that the jobs of national director of public prosecutions and chairperson of the SABC had been given to fiercely independent and competent people – and that a truly independent anticorruption unit had been set up to ensure that the billions of rands that could go towards social and economic transformation were no longer the subject of egregious levels of corruption.

Similarly, it would significantly bolster accountability if a reform of the electoral system could be initiated, along the lines of the recommendations of the Van Zyl Slabbert Commission on Electoral Reform Report (2003), which suggested a combination of party lists and multimember constituencies.

All of this would help our troubled state of politics. But a resilient judiciary cannot do the work alone without recapturing the democratic and inclusive social practices that, having been developed in the 1980s, got South Africa to 1994. For these reasons, the deputy chief justice has provided us with a most timely warning: the achievements of the first 20 years of democracy are under threat, and only the general polity can ensure that we will be able to celebrate again in 20 years’ time.